Koven et al v. Hammond et al

Filing 120

MEMORANDUM AND ORDER - Defendants' Motion for Summary Judgment (filing 96 ) is denied. Ordered by Magistrate Judge F.A. Gossett. (Copy e-mailed to pro se party)(GJG)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF NEBRASKA
DAVID SCOTT KOVEN SR., and
ROXANNE DIANE KOVEN,

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Plaintiffs,
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V.
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TODD HAMMOND, Plattsmouth
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Police Officer, LEROY LEWIS,
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Plattsmouth Police Officer, DAVID
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MURDOCH, Plattsmouth Police
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Chief, ROBERT SORENSON,
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Plattsmouth Police Officer, ANDREW )
KENNAN, Plattsmouth Police
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Detective, and DAVID WALKER,
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Plattsmouth Police Detective,
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Defendants.
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8:10CV373

MEMORANDUM AND ORDER

This matter is before the Court upon the motion for summary judgment filed by
Defendants Todd Hammond, Leroy Lewis, David Murdoch, Robert Sorenson, Andrew
Kennan and David Walker (filing 96). For the reasons explained below, Defendants’ motion
will be denied.
FACTS
On the evening of June 27, 2009, Mr. Koven was home alone with his two minor
children, ages eight and three. Ms. Koven, who was deployed with the Army National
Guard, contacted her neighbor, Cindy Burke (“Burke”), and requested that Burke check on
her family. Rather than going to the Koven home, Burke contacted police. Burke informed
the police that Ms. Koven had advised her that Mr. Koven was suicidal.
Following receipt of Burke’s call, Defendant police officers David Murdoch
(“Murdoch”), Todd Hammond (“Hammond”), Leroy Lewis (“Lewis”) and Robert Sorenson
(“Sorenson”) traveled to the Koven home. When the officers arrived, they approached Mr.

Koven outside his home and told him that they were there to conduct a health and welfare
check. The officers informed Mr. Koven that they received a report that he was suicidal and
that they needed to speak with him. Following a series of events during this encounter (many
of which are disputed), Mr. Koven was placed in custody. Sorenson transported Mr. Koven
to the Lasting Hope mental health facility in Omaha, Nebraska, where he was involuntarily
committed for seventeen days.
After Mr. Koven was taken into custody, Lewis entered Plaintiffs’ house to supervise
Plaintiffs’ children until arrangements could be made to put them in foster care. Lewis
contends that he was directed by Plaintiffs’ daughter, Kristin, to look in the basement laundry
room for clean clothes for the children to take to foster care. While in the basement, Lewis,
who did not have a warrant to search the home, found potted marijuana plants and what
appeared to be a small marijuana growing operation. Lewis informed Murdoch of what he
found in the basement. Murdoch then told Lewis to summon Defendants Andrew Kennan
(“Kennan”) and David Walker (“Walker”) to conduct a further search. Plaintiffs deny that
Lewis was instructed to look in the basement for clothes and maintain that the officers used
Mr. Koven’s absence as an opportunity to conduct an unlawful search of the home.
Plaintiffs filed this civil suit on October 5, 2010, alleging that Defendants violated 42
U.S.C. § 1983 by illegally searching their home (Count I); unconstitutionally seizing their
children (Count II); unconstitutionally seizing and confining Mr. Koven (Count III) and
conspiring to violate their constitutional rights. (Filing 1.)1 Plaintiffs also alleged that the
City of Plattsmouth’s policies, practices and customs caused the alleged violations of
Plaintiffs’ constitutional rights (Count V).
On April 6, 2013, this Court entered an order granting, in part, a motion for summary
judgment filed by Defendants. Finding that there was no evidence to support a conspiracy
claim, and that the police acted reasonably in taking the children into custody following Mr.
Koven’s detainment, the Court dismissed Counts II and IV of the Complaint. The Court also
found no factual support for Plaintiffs’ policies and practices claim and, therefore, dismissed

1

Plaintiffs, while initially represented by counsel, are now proceeding pro se in this

case.
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the City of Plattsmouth from this action.
Defendants have filed another motion for summary judgment, arguing that Defendants
are entitled to qualified immunity.
DISCUSSION
“Qualified immunity shields government officials from suit unless their conduct
violated a clearly established constitutional or statutory right of which a reasonable person
would have known.” Yowell v. Combs, 89 F.3d 542, 544 (8th Cir. 1996). “Stated another
way, qualified immunity shields a defendant from suit if he or she could have reasonably
believed his or her conduct to be lawful in light of clearly established law and the
information that the defendant possessed.” Smithson v. Aldrich, 235 F.3d 1058, 1061 (8th
Cir. 2000) (internal quotation and citation omitted).
To withstand a motion for summary judgment on qualified immunity grounds, the
plaintiff must have “(1) assert[ed] a violation of a constitutional right; (2) demonstrate[d] that
the alleged right is clearly established; and (3) raise[d] a genuine issue of fact as to whether
the official would have known that his alleged conduct would have violated [the] plaintiff’s
clearly established right.” Habiger v. City of Fargo, 80 F.3d 289, 295 (8th Cir. 1996), cert.
denied, 519 U.S. 1011, 117 S.Ct. 518, 136 L.Ed.2d 407 (1996)). “[T]he nonmoving party
is given the benefit of all relevant inferences at the summary judgment stage.” Smithson, 235
F.3d at 1061. If a “genuine dispute exists concerning predicate facts material to the qualified
immunity issue, the defendant is not entitled to summary judgment on that ground.” Pace
v. City of Des Moines, 201 F.3d 1050, 1056 (8th Cir. 2000).
A.

Placement of Mr. Koven in Emergency Protective Custody

Mr. Koven complains that Murdoch, Hammond, Lewis, and Sorenson violated his
constitutional rights by taking him into emergency protective custody.2 Contrary to
Defendants’ assertion, Mr. Koven claims that he was cooperative with the officers when they
arrived at his home and that the officers had no reason to place him in custody. Plaintiffs
2

This Court previously dismissed Count III to the extent it was meant to apply to
Kennan and Walker because these two defendants were not involved in placing Mr. Koven
in custody.
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maintain that Ms. Koven did not tell Burke that Mr. Koven was suicidal. Plaintiffs further
dispute Defendants’ assertions that Ms. Koven informed them that Mr. Koven was suicidal.
Based on these disputed facts, the Court is unable to grant Defendants’ motion for summary
judgment.
A case presenting facts similar to those here is Bailey v. Kennedy, 349 F.3d 731 (4th
Cir. 2003), a case in which the Fourth Circuit Court of Appeals affirmed the lower court’s
denial of qualified immunity for an unlawful seizure claim. The officers in Bailey argued
that they had probable cause to seize Bailey for an emergency mental evaluation based upon
a neighbor’s report to police that Bailey had told her that he was going to commit suicide.
The Fourth Circuit Court of Appeals disagreed, stating “[w]ithout more, the 911 report
cannot bear the weight that the officers would place on it. The law does not permit random
or baseless detention of citizens for psychological evaluations.” Id. at 740 (internal quotation
and citation omitted). The court found that “the 911 report, viewed together with the events
after the police officers arrived, was insufficient to establish probable cause to detain [Bailey]
for an emergency mental evaluation.” Id. at 741. As in Bailey, Burke’s report to the police
could be deemed insufficient to establish probable cause to place Mr. Koven in emergency
protective custody, particularly if there was no other indication that Mr. Koven was a threat
to himself or others. A genuine issue of fact remains as to whether other circumstances
existed which justified the officers’ actions.
B.

Search of Plaintiffs’ Home

Plaintiffs allege that Lewis, Kennan and Walker violated their Fourth Amendment
rights by unlawfully searching their home without a warrant. Plaintiffs contend that Lewis
was not actually looking for clothes while in the basement because their daughter had already
packed clothes to take to foster care.
It is well-settled that the Fourth Amendment requires that a warrantless search of the
home be supported by consent or by probable cause and exigent circumstances. United
States v. Poe, 462 F.3d 997, 999 (8th Cir. 2006). Viewing the facts most favorably to
Plaintiffs, it could be found that no probable cause or exigent circumstances existed to search
Plaintiffs’ home without a warrant and that the officers acted unreasonably in doing so.
Accordingly,

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IT IS ORDERED that Defendants’ Motion for Summary Judgment (filing 96) is
denied.
DATED October 15, 2013.
BY THE COURT:
S/ F.A. Gossett
United States Magistrate Judge

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